Changes have been made to British legislation to comply with this directive. However, the directive continues to have effects on how employment tribunals in Britain interpret and apply discrimination law. The full text of the directive is on the EurLex website. There is a separate page on Brexit.
Broadly, the directive applies to discrimination in the area of employment, self-employment, and ‘occupation’. It covers discrimination on grounds of religion or belief, disability, age or sexual orientation. Both direct and indirect discrimination are covered. It includes a requirement to make reasonable accommodation for disabled people.
What is a directive?
A directive is not intended to apply directly in member states (though it may have direct effect if not properly implemented). The idea is that member states pass national laws to put it into effect. Accordingly, Britain was required to amend its equality legislation so far as this did not already give the protection required by the directive.
Nevertheless the directive can – and indeed should – be considered by UK courts, where the Equality Act fails to implement the directive: see below.
How is the directive relevant in the UK?
Firstly major changes were made to the Disability Discrimination Act 1995 (DDA) to comply with the directive. Less fundamental changes were made in Equality Act 2010 which replaced the DDA. See below Changes already made in British law to reflect the directive.
Secondly, the directive has an ongoing effect on any areas of UK law and practice which remain inconsistent with the directive, or where UK law is unclear but could be interpreted consistently with the directive. Even UK employment tribunals must consider the directive where it is relevant. See below Where may EU law be influencing UK law now?
In Paterson v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal said broadly that the directive has bound the UK courts in employment matters since October 2004. That was when regulations designed to implement the directive took effect in the UK.
Decisions of the Court of Justice of the European Union (CJEU) are binding on UK courts as to how the directive should be interpreted, though there are limits on how far the UK courts may ‘re-interpret’ UK legislation. See below Where UK law is inconsistent, what happens? (Note: the CJEU was previously known as the European Court of Justice, or ECJ.)
Importance of the UN Convention
So far as possible, the Framework Employment Directive must be interpreted in a way that is consistent with the UN Convention on the Rights of Persons with Disabilities (CRPD):
Ring v Dansk almennyttigt Boligselskab, 2013, Court of Justice of the European Union (CJEU)
The CJEU emphasised the importance of the UN Convention, which the EU ratified in 2010. The court said the provisions of the Convention are now an integral part of the European Union legal order. The EU’s Framework Employment Directive must, as far as possible, be interpreted in a way that is consistent with the Convention.
In the present case, the CJEU took the UN Convention into account in interpreting both the meaning of disability, and the duty to make reasonable adjustments.
Where may EU law be influencing UK law now?
Meaning of ‘disability’
The Equality Act, like the DDA previously, contains a detailed definition of disability. But the definition must not be narrower than in the directive. The UK courts will accordingly take into account decisions of Court of Justice of the European Union (CJEU) on the meaning of disability.
Ring v Dansk almennyttigt Boligselskab, 2013, Court of Justice of the European Union (CJEU)
Like the court’s previous decision in Chacón Navas (2006), the Ring decision may be particularly useful to UK claimants whose impairment has a substantial effect only on those work-related activities which might not normally be seen as a ‘normal day-to-day activity’, eg making presentations or job interviews. (See Chacón Navas: Relevance to stammering).
The Ring decision is also important in incorporating the social model into the directive’s concept of disability, including the barriers created by people’s attitudes. It remains to be seen whether the case will lead to less emphasis on whether an impairment has a significant enough effect on a person’s abilities to be a ‘disability’, and more on barriers created by attitudes and the environment.
Paterson v Commissioner of Police of the Metropolis is an important UK case in which the Employment Appeal Tribunal cited the European court decision Chacón Navas, to support a decision that a high pressure exam for promotion is a ‘normal day-to-day activity’.
3rd party harassment
The government has repealed an Equality Act provision protecting employees from failure to take steps against harassment by customers, for example. This will create renewed interest in how far the directive requires protection against 3rd party harassment. See Harassment by third parties: claim under s.26 definition of ‘harassment’?
Jessemey v Rowstock was a case in which the strict wording of the Equality Act indicated that post-employment victimisation was not covered by the Equality Act 2010, but that the EU Framework Employment Directive required it to be covered. The Court of Appeal held there was an error in the Act which the court could correct, so the Equality Act 2010 should be interpreted to include post-employment victimisation.For more see Victimisation: Is post-employment victimisation covered?
Wider jurisdiction over non-UK employments
Where legislation implements EU law, such as a directive, the courts have been willing to extend the normal territorial scope of the British law to give an effective remedy to EU rights. See Employment: Connection with Great Britain: Wider scope through European Union (EU) law?
A volunteer tried unsuccessfully to rely on the directive in X v Mid Sussex Citizens Advice Bureau. She argued that her volunteering was protected under the Directive, even though the wording of the DDA (which then applied) did not cover it. The Supreme Court rejected her claim in December 2012. It held that – so far as relevant to her case – volunteers were not within the directive. On volunteering generally, see Volunteers.
Where UK law is inconsistent, what happens?
Interpreting Equality Act so as to comply (the Marleasing principle)
UK tribunals need to interpret UK legislation “so far as possible” to offer at least as much protection as the directive. This is often known as the principle in Marleasing (link to lawgazette.co.uk).
This principle is not limited to situations where the Equality Act is ambiguous. The Employment Appeal Tribunal has said that even if the British statute (the DDA in that case) is clear, wording can be written in to change its meaning; however, the courts cannot change it in a manner which is not “compatible with the underlying thrust of the legislation” or which is “inconsistent with the scheme of the legislation or its general principles.” (EAT in Coleman v Attridge Law).
In Paterson v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal said it would have interpreted the UK definition of disability as it did anyway just looking at domestic law, but that in any event it was bound to reach that interpretation by the European Court decision in Chacón Navas.
In Coleman v Attridge Law, the Employment Appeal Tribunal has held that the DDA can and should be interpreted to include direct discrimination and harassment related to someone else’s disability in employment cases. (This has been rectified in the wording of the Equality Act 2010.)
Direct effect can apply where the employer is a public body. The directive needs to be unconditional and sufficiently precise, but that test is interpreted quite widely. Where a directive has direct effect, a UK tribunal should decide the case before it by directly applying the provisions of the directive.
Direct effect is not needed if the tribunal can interpret the Equality Act to conform with the directive, under the principle in Marleasing (above). However, if the Equality Act cannot be re-interpreted in a way that complies with the directive, direct effect can apply if the claim is against a public body. Direct effect may allow (indeed require) a tribunal to decide the case in a way which has no basis in the UK statute, and which perhaps even contradicts the UK statute.
The most important limitation of ‘direct effect’ is that it does not apply against a private body (eg a company running a business) which is not an emanation of the State, but see next heading.
Beyond direct effect
In the 2010 case of Kücükdeveci, the EU Court of Justice seems now to be saying that where, as perhaps in discrimination law, the directive is giving effect to a general principle of EU law, the national court must if need be disapply any inconsistent provision of national legislation. This is so even in the case of a private sector employer (so no ‘direct effect’) where it is not possible to ‘re-interpret’ the national law.
This is often known as the principle in Mangold v Helm, the name of a previous EU Court of Justice decision.
So it is possible that – in the case of the Framework Employment Directive – the principle of direct effect, which has previously only applied against public bodies, is effectively being extended to claims against others such as private companies.
Amendment of the Equality Act
Where required, Parliament must amend the UK statute to be consistent with the Directive.
Where the meaning of the directive is unclear, a UK court can ask the ECJ how it should be interpreted.
Suing government for compensation – Francovich damages
Where a directive does not have direct effect, and an individual suffers loss as a direct result of the UK’s failure to implement the directive, he or she may be able to sue the UK government for compensation for failing to implement it. This principle was laid down in Francovich v Italy (link to wikipedia.org). A claim would be in the county court or High Court, not the employment tribunal.
Changes already made in British law to reflect the directive
In the Equality Act 2010
These amendments in the Equality Act 2010 were formally brought into force in October 2010. However, as regards employment, the changes were or may arguably have been already in effect, as being required by European Union law.
- Discrimination by association. In Coleman v Attridge Law (July 2008), the European Court decided that the directive covers direct discrimination or harassment of an employee by reason of another person’s disability. UK tribunals subsequently held that the DDA must be re-interpreted to give effect to this (under the Marleasing principle). The Equality Act 2010 uses new wording to cover this more clearly, and also goes beyond the requirements of the directive by prohibiting discrimination by association in areas other than employment, such as provision of services. More on discrimination by association.
- Perceived disability. It has been argued – but not as yet established in the courts – that EU law requires direct discrimination and harassment to be unlawful against someone who was mistakenly thought to have a disability. In the context of stammering, this may help if a stammer does not actually have a substantial effect but an employer perceives it to have. From October 2010, the Equality Act has introduced rules covering this, and again the rules are not limited to employment. More on perceived’ disability.
- Harassment: Protection against harassment under the DDA was probably too narrow. Again the Equality Act 2010 has made changes. More on harassment.
- Justification: My view was that under European Union law the threshold for “justification” of (indirect) discrimination in employment should have been higher than the threshold used in practice under the DDA. The Equality Act 2010 has now changed the British justification test to that used in Europe.
- abolition of the exemption for employers with less than 15 employees;
- DDA extended to cover most occupations previously excluded from its employment provisions, eg police, prison officers, fire-fighters; and
- an employer can no longer justify ‘direct discrimination’. (more…).
Changes required by the directive in relation to post-16 education came into effect in September 2006.
Generally, the implementation date of the directive was 2nd December 2003. However, ‘if necessary a member state had an option to extend this by a further three years as regards disability and age discrimination, in other words until December 2006.
- External links:
- European law and equality: An introduction (pdf) – leaflet from the Equality and Diversity Forum.
- The EU’s Anti-discrimination and relations with civil society
- Article by Richard Whittle published in the European Law Review 27(3): 303-326: “The Framework Directive for equal treatment in employment and occupation: an analysis from a disability rights perspective.”, www.leeds.ac.uk/disability-studies/archiveuk/richard%20whittle/uropean%20Directive.pdf
- Handbook of European non-discrimination law – 2011, available to download as a pdf.
- My links page includes some websites relating to new laws under the directive in various European counties.
- See my European Union page, on Article 19(1) (previously Article 13) and other European Union measures.
The directive is based on what is now Article 19(1) of the Treaty on the functioning of the European Union (it was previously ‘Article 13’).The formal name of the directive is: ‘Council Directive establishing a general framework for equal treatment in employment and occupation’. It was passed on 27th November 2000 as Council Directive 2000/78/EC and is available on the internet.